Biener Contracting Corp. v. Elberon Restaurant Corp.

In this action plaintiff seeks to recover from defendant Morris Wishnetzky, an unpaid balance on certain fixtures sold by plaintiff to defendant Biberón Restaurant Corp., under a conditional sales agreement. Wishnetzky was the holder of a chattel mortgage on other fixtures in Biberón’s Restaurant. Biberón being in default in its payments to both plaintiff and Wishnetzky, the latter allegedly proposed that if plaintiff would withhold action, he (Wishnetzky) would foreclose his mortgage, take over the business and pay plaintiff in full. Irving Biener, testifying for plaintiff, stated that when…